Tag Archives: Legacy

Learn the essentials of legacies and bequests from experienced inheritance lawyer Mag. Patrick Maydell, LL.M.

1. What is a legacy?

A legacy or bequest (Vermächtnis or Legat) is a benefit left by the deceased to a legatee without making that person an heir. It does not confer a share in the entire estate, but a particular asset or benefit. Anything that benefits the legatee can be bequeathed: a physical object such as a car or painting, a claim such as a bank balance, a right of residence, a business and so on.

A legacy of a specific asset is effective only if the asset belongs to the deceased or the heir. This means the testator can even leave an asset belonging to the heir rather than to the testator. The heir can avoid this by declining the inheritance.

The testator may also oblige the heir to acquire an asset and transfer it to the legatee, known as a procurement legacy (Verschaffungsvermächtnis). If its owner will not sell, or will sell only above market value, this becomes a monetary legacy equal to market value.

If the asset is pledged or otherwise encumbered, the legatee must also take over the associated burdens. These include not only security rights and easements but also the deceased's personal debts connected with the asset, for example a loan taken out to buy it.

2. Who is entitled to a legacy?

The deceased must direct in a testamentary disposition, such as a will or codicil, that a particular person receive a particular asset. The beneficiary is usually a third party who is not an heir, but an heir can also receive a legacy. In that case, it must be established whether it is additional to the inheritance share or to be deducted from it.

3. Who owes the legacy?

Before the estate is formally transferred to the heir by the probate court (Einantwortung), the estate owes the legacy; afterwards, the heir does. The legatee has a claim against the estate or heir and becomes owner only when it is fulfilled, for example through delivery or registration in the land register.

Free initial assessment — call now

Call +43 1 295 4251 or email office@maydell-law.at for a free initial telephone assessment.

4. When does the entitlement arise?

Legacies fall due immediately on death. However, monetary legacies and legacies of assets outside the estate can only be demanded after one year from death, unless the testator ordered earlier payment.

5. What is the deadline for claiming?

The claim to delivery of the bequeathed asset becomes time-barred three years after knowledge of the facts establishing the entitlement.

6. How can a legacy be enforced?

A legatee may bring a separate action to enforce the claim, a legacy action (Vermächtnisklage). They may also request separation of the estate, meaning separation of the bequeathed asset from the estate's assets. If the legatee lacks full legal capacity and has not received the legacy, the heir must provide security before the estate is transferred.

7. Can a legacy be reduced?

A reduction is possible in two situations.

First: an heir making a conditional declaration of acceptance limits liability to the value of the assets received. They take on the deceased's debts only up to that amount and may proportionately reduce legacies that cannot be satisfied from the estate.

Example: the deceased leaves assets of EUR 100,000 and debts of EUR 60,000. Son B is the heir; C is to receive EUR 50,000 as a legacy. If B accepts conditionally, only EUR 40,000 is payable to C, being EUR 100,000 less EUR 60,000. If the heir accepts unconditionally, the full EUR 50,000 is payable.

Second: if a person entitled to a compulsory share, such as a child limited to that share, has not received the full entitlement from the deceased, a monetary claim arises. The heir need not fund it alone and may require the legatee to contribute. This reduction right applies whether the inheritance is accepted conditionally or unconditionally.

8. What is a care legacy?

For deaths after 31 December 2016, a person close to the deceased who provided care may receive appropriate compensation from the estate. The question whether the care has already been compensated by a benefit from the deceased or an agreed payment must be considered.

Care means activity that provides the necessary support and assistance as far as possible and improves the person's ability to lead a self-determined life according to their needs. The required level is an average of twenty hours per month for at least six months within the final three years of life.

If a care legacy is claimed, the notary acting as court commissioner in probate proceedings must seek agreement on its fulfilment. If no agreement is reached, the caregiver may sue.

9. What does litigation cost, and will insurance cover it?

The cost of the claim and proceedings depends on the amount in dispute, meaning the legacy claimed. The higher this amount, the higher the litigation costs. I will be pleased to provide an individual estimate.

If you win, you are entitled to reimbursement of litigation costs by the opponent, including costs advanced.

If you have legal expenses insurance, check whether inheritance law is included. Where it is, litigation costs are covered under the policy. I can make a free written coverage enquiry for your specific case.

If you do not yet have insurance, note that policies often contain waiting periods. Depending on the terms, an insurer may refuse cover, for example if the death occurs one year after the policy began. Arrange insurance in good time.

How I can help

As a specialist inheritance lawyer, I advise and represent you on inheritance and legacy matters, including:

• enforcing inheritance rights and defending unjustified claims in contested estates in and out of court;
• estate planning, including purchase and gift agreements, gifts effective on death and waivers of inheritance or compulsory-share rights;
• drafting, registering and holding your will in safekeeping;
• advice and representation in inheritance partition proceedings — see partition actions;
• calculating compulsory shares and helping prevent disputes;
• advice on succession and acceptance declarations, and representation in probate proceedings.

Free initial assessment — call now

If you have questions or need help claiming or defending a legacy, I offer a free initial telephone assessment. Call +43 1 295 4251 or email office@maydell-law.at.

Mag. Patrick Maydell, LL.M.
Attorney at Law
Neustiftgasse 17/1/9
1070 Vienna
Telephone: +43 1 295 4251
office@maydell-law.at